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Andrew Bergh
Andrew Bergh

February 25, 1999

Here's 30 beers; take a hike

By ANDREW BERGH
Special to the Journal

I usually don't stick up for drunks.

But when a liquor establishment sells at least 30 drinks to a single patron, is it really asking too much for the bartender to pick up the phone and call a taxi so the besotted customer can get home in one piece? Apparently so, if you're drinking in the state of Maine. That, anyway, seems to be the message of Jackson v. American Legion.

On October 6, 1991, Brian Jackson woke up with a sizable thirst. He went to a friend's house and began drinking beer. After finishing off a six-pack, Jackson and his friend went to their local American Legion bar where they were regular customers.

The saloon must've had a long happy hour. Starting that afternoon, Jackson glugged down between 25 and 30 beers. On top of that, he tossed down five to seven shots of vodka. But by the early evening, Jackson was still conscious and standing.

And apparently mouthy too. After getting into an argument with the bartender, Jackson was ordered to leave. It was pouring rain. Jackson asked her to call him a cab, but when she refused he left.

(If you're wondering why Jackson didn't personally call the taxi company, I suspect he'd either spent his last two bits on booze, or the prospect of correctly dialing a seven-digit number was too daunting.)

This fortunately wasn't a case where MADD got involved, as Jackson departed on foot, not by car.

But weighed down by all that alcohol, the ejected patron didn't get very far. A police officer who knew Jackson well saw him standing in the street outside the bar and moved him back to the sidewalk. The cooperative cop told Jackson to stay put, promising him a ride home right after he responded to a call down the street.

A few minutes later, however, the officer saw Jackson lying in the roadway. The victim of a hit-and-run accident, Jackson had suffered a broken knee and various abrasions.

Under Maine law, tavernkeepers are partly shielded from liability. It is not enough to show a customer was negligently overserved alcohol. Instead, the plaintiff must prove liquor was recklessly served to a "visibly intoxicated individual."

Against this backdrop, Jackson sued the American Legion bar for damages. After settlement talks went nowhere, his fate was decided by a Penobscot County jury.

In his proposed jury instructions, Jackson argued that the bar owed an affirmative duty to call him a taxi. The jury should therefore decide, he claimed, whether the bartender had recklessly failed to do so on the night in question.

Nope, said the man wearing the black robe.

The jury was instead instructed that Jackson had to prove three propositions to prevail against the tavern. One, that the bar had intentionally served liquor to Jackson. Two, that Jackson was visibly intoxicated. And three, that the bar consciously disregarded an "obvious and substantial risk" that serving liquor would cause harm to Jackson.

Maybe I'm having a slow day, but it seems to me Jackson had a pretty good case.

First, unless she was matching him drink for drink, there can't be much doubt the bartender "intentionally" served liquor to Jackson.

Second, even though Jackson apparently had an astounding tolerance for alcohol, there's just no way he could consume 30 (or more) beers and vodkas and not be "visibly intoxicated." After all, if Jackson was in such good shape, how come he couldn't stay on the sidewalk after leaving the bar?

And third, unless they've got incredibly different drinking habits in Maine, how can you serve 30 drinks to one customer and not know that would put him at "obvious and substantial risk" of harm? Heck, I'd think a few bells and whistles would go off at, say, drink number 15 or 20.

Forget what I think, however, as the jury sided with the tavern.

In his subsequent appeal, Jackson argued, among other things, that the jury was improperly instructed. The issue of whether the bartender had recklessly failed to call him a cab should have been submitted to the jury, he once again claimed.

But Jackson received another sobering lesson, this time from the Maine Supreme Court.

The liquor liability law only applies to the reckless service of liquor, said the court, not to other reckless conduct. Accordingly, since the bar couldn't be found liable for not calling a taxi, that issue was properly withheld from the jury, the court ultimately concluded.

The lesson, I guess, is to not get mouthy with the barkeep. Either that, or live next door to your favorite watering hole so you don't have too far to stumble home.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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